Libeling The First Amendment: The Right’s Warping Of Free Speech

We have heard a lot from conservatives about the first amendment, most recently in defense of Rush Limbaugh’s comments in which he referred to Sandra Fluke as a slut and a prostitute, along with his advocacy for on line porn videos of women who want access to birth control through their health insurance plans.


When someone maligns a person’s character with untruths and distortions about that person’s beliefs, statements or activities, it is defaming that person’s character.  When someone takes to the public airwaves with such statements, it is called  libel.  A reasonable person could conclude that Rush Limbaugh’s comments about Sandra Fluke were libelous in nature.

Libel is not protected under the first amendment.  For a private person, like Sandra Fluke, to seek a legal remedy against someone who libels them, they need only prove that the statements were untrue and defaming in nature.


Limbaugh mischaracterized Fluke’s congressional testimony in more than one instance.  For example, Limbaugh claimed that Fluke advocated for government-paid oral contraceptives.  Here is what she actually said:

“How can Congress consider the Fortenberry, Rubio, and Blunt legislation that would allow even more employers and institutions to refuse contraceptive coverage and then respond that the non-profit clinics should step up to take care of the resulting medical crisis, particularly when so many legislators are attempting to defund those very same clinics?”

Limbaugh suggested that Fluke and others are perhaps less discretionary in their choice or frequency of sexual activity than he considers acceptable when he said Fluke is having so much sex that she can’t afford the birth control.  Nothing in her  testimony supports this assertion.

Actually, she does talk about students forgoing birth control when it is denied under the insurance that they pay for.  She does talk about the consequences of the Blunt amendment when it comes to affordability for a prescription for which the cost remains constant regardless of the frequency of sexual encounters.


She also talks about the fact that oral contraceptives are prescribed for purposes other than contraception and the Blunt amendment does not provide for exemptions in these cases.

“These denials of contraceptive coverage impact real people. In the worst cases, women who need this medication for other medical reasons suffer dire consequences. A friend of mine, for example, has polycystic ovarian syndrome and has to take prescription birth control to stop cysts from growing on her ovaries.

Her prescription is technically covered by Georgetown insurance because it’s not intended to prevent pregnancy. Under many religious institutions’ insurance plans, it wouldn’t be, and under Senator Blunt’s amendment, Senator Rubio’s bill, or Representative Fortenberry’s bill, there’s no requirement that an exception be made for such medical needs.”

Chances are if this matter were to be considered in a court room, Limbaugh’s lawyer’s would claim that Fluke is a public person. This is because If someone is a public person, they have to go the extra step to prove  actual malice and the aforementioned factors.

If Fluke were to be considered a public person for the purpose of a libel suit the probability that Limbaugh’s libelous statements contributed much more to possibly making Fluke a public person than her testimony is analogous to someone killing their parents then seeking mercy from the court because they are an orphan.

Even if Fluke was a public person there is plenty of evidence to prove the actual malice element of a libel claim.

The fact that Rush Limbaugh has a prior and subsequent history of attacking intelligent women whose views don’t coincide with his views establishes a pattern of malice toward women who fall within this category. Limbaugh’s past references to feminazis illustrate a prolonged resentment of women who stand up for their beliefs, which also do not coincide with Limbaugh’s misogynistic view of the world. His attacks on Traci McMillan and other college educated women and  Alexandra Petri shows that Limbaugh’s desire to malign articulate women continues.

In other words, his conduct prior and subsequent to comments made against Sandra Fluke shows that Limbaugh intended to attack Sandra Fluke.

Moreover, let’s consider that Limbaugh’s attacks on Fluke did not end after one, debateably passionate attack.  He continued to attack her for several days on his 3 hour radio show.  Granted, he issued a statement apologizing for a poor choice of words, perhaps hoping that would prevent an exodus of sponsors or other reasons.  However, saying that you chose some bad words to express a sentiment that defames another person, doesn’t undo the libel.

Aside from aspect of libel, Limbaugh’s call for on line porn video in exchange for access to birth control qualifies is obscene material under the definition offered by the Supreme Court in  Miller v. California, 413 U.S. 15 (1973). Wikapediasummarizes the court’s legal definition of obscene as:

  1. whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;
  2. whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions[4] specifically defined by applicable state law; and
  3. “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[5]


Hence, when Rush’s ditto heads and other defenders claim that opposition to those comments is about political correctness or regulating speech, they really don’t have a clue what they are talking about.  There’s also an element of arrogance in descriptions of efforts to boycott Limbaugh’s sponsors as extortion or other less than acceptable conduct.

Unlike libel and obscene comments, boycotts are protected under the First Amendment, as reflected in a recent court decision involving a food co-op that boycotted Israeli food products.  According to the Seattle Times:  the court ruled that the boycott was protected speech and cited an Anti-Slapp law which limits lawsuits aimed at silencing activists.

While the Freedom of Speech clause in the First Amendment is broadly interpreted, there are limits that guarantee.  A key difference between Conservative and Liberal defenses of First Amendment rights lies in the notion that while certain sorts of speech are not protected under the Constitution, Free Speech is an inalienable right which every human being enjoys.

This all started because conservatives seem to think that the First amendment is a privilege to be afforded to older white males, corporations and churches that push the conservative political agenda. They also seem to think that the first amendment is a defense of libel, obscenity and hate speech when utilized by conservative commentators.  There is nothing in objections to Rush Limbaugh’s slanderous and libelous attacks directed at Sandra Fluke and other women that suggests a desire to regulate speech or narrow the Supreme Court’s broad interpretation of free speech.  Suggesting that is just plain false.

This isn’t the first time right wing extremists have made it clear that their version of the first amendment is more consistent with a privilege to promote their oppressive agenda, rather than an inalienable right in which a diversity of thoughts and opinions are expressed.

Police state tactics were used to quash the Occupy Protests. As Sarah Jones reported, people in Virginia who were protesting against a law that seeks to demean women who seek abortions were arrested.  In reality, this was about silencing opponents of the right wing and sending a warning out to anyone else who dares to try it.

“Protesters wore armbands reading “Gov. McDonnell get out of my vagina!” Virginia is one of the states where Republicans introduced the physically offensive and often painful transvaginal ultrasound as a mandated medical procedure for women considering an abortion.”

This is not the behavior of people who believe in or value the first amendment.  It is the behavior of tyrants.

This post is dedicated to Jason Easley and Sarah Jones who refused to let certain parties silence Politicus’s voice.

Image from politics off the grid

18 Replies to “Libeling The First Amendment: The Right’s Warping Of Free Speech”

  1. I am extremely concerned about the new police state. Remember when the governors wanted their own militias? Do we trust these people with our lives? I don’t.

    This first amendment thing has gone off the rails. The only thing the whole Rush thing has to do with free speech is the fact that the free speech of the people who listen or are concerned are ignored. Lets get something straight. Only the government can take away your free speech and the constitution says that illegal.

  2. Even without the libelous nature of Limbaugh’s statements there is no first amendment argument to be made by their side. Free speech protects us from GOVERNMENT prosecution for having and expressing ideas and from GOVERNMENT efforts to stop a person from expressing ideas. It does NOT provide everyone with right to say whatever they want with no consequences. When potential advertisers pull their ads or listeners tune out or boycott sponsors the creep’s sponsors it is exactly the laissez faire free market correction that these conservatives extoll. So all I can say to them is: Cry me a river. No really, cry me a river. The schadenfreude is fantastic!

  3. It is, however, nice to see republicans FINALLY acknowledge that there actually IS a 1st amendment to the constitution. Now if they could just get someone to help them sound out the big words in the establishment clause…

  4. A public figure can sue for defamation of character not only when there is actual malicious untruth, but when the statement is uttered with such a reckless, willful and wanton disregard for the facts as to amount to a malicious lie. I doubt Sandra Fluke was anything but a private citizen before Limbaugh’s repeated imputations of not only flagrant unchastity but actual prostitution were made against her; in all events, imputation of prostitution to a woman has always been defamation per se at common law, to which the plaintiff need make no preliminary showing of actual damages or (in most jurisdictions) untruth. Furthermore, in Florida, where Limbaugh resides, it is also criminal libel.

    Ms. Fluke, however, has suffered such damages. She has been threatened with sexual mutilation (“her clit should be cut off at the root”) by Pamela Geller and her followers; her reputation has been smirched in a way that is likely to damage or destroy her career (“We can’t hire you- you’re too controversial”); she has, without any basis at all, been tarred as an Islamic terrorist; her likeness has been obscenely photoshopped and distributed on the Web; she must live in fear of murder or grave bodily harm for some years to come. If that isn’t real damage arising from defamation made with actual malice, nothing is. This kind of speech HAS NEVER BEEN PROTECTED. I don’t use the caps lock often. This warrants it.

  5. The GOP (in reality, Wall St. and the banks) have been gaming the system for years. They created an instituted a public propaganda machine to spread the Big Lie. It did such a great job, thanks to the consistent class, race, religious and economic hatred spewed by their talk show hosts, that 25 years later, we have a generation of ignorant undereducated, angry bigots that have no clue as to what the real world is doing to them.

    FREE SPEECH IS NOT A LICENSE TO RE-WRITE HISTORY. unless you run the Fox/Goebbels network, or are Rupert Murdoch or the Koch Nazis, or are in Texas.

  6. Let them slander. Let them rant. The GOP is alienating more people every single day. And that will bode well for us to take back everything they have taken away since 2010.

  7. It’s been going on for hundreds of years. They stirred up racial distrust between groups to keep them from joining together throughout much of the history of this nation. In the early 1800s, business owners were denouncing and deriding the homeless, while at the same time actually funding the encouragement of homelessness.

    The big difference is that they now have a political party to do their dirty work… before it was more privately done (and often at the local or individual level).

  8. Herr Hitler spoke at beer halls and other rallies exercising his right to free speech.
    He was supported by conservative newspapers
    and magazines of the day.
    Based on results, his “right” cost 50 million men women and children their lives. Had someone taken him out there would have not been a horrible war.

  9. Limbaugh may have made slanderous statements against Ms Fluke, slander is the spoken words. Libel is the written words. I do not think Limbaugh wrote defamatory statements about Ms Fluke.

    If Limbaugh is charged with a crime, it would be slander, not libel.

    At least those used to be the definitions.

  10. Uh… that’s too close to advocating violence, and I don’t think that’s too kosher.

    Hitler could have been dealt with in a great many ways with a good outcome IMO. He could have been exposed to ideology that emphasized the value of plurality. He could have learned about the real reasons for the way WWI ended. He could have learned to accept people.

    Rather than his death, imagine what this world had been like if he’d been an advocate for good? If he’d spoken against hate? As strong a speaker as he is reputed to have been, he might have become a world leader who was a beloved statesman instead of the monster he did become.

    If people had spoken up against him, he might have just become a tiny footnote in history. He had to have had a lot of willing accomplices to achieve the power he attained… people who weren’t willing to resist.

    Limbaugh and the other liars can be stopped without violence – the only legitimate way. The boycott of his advertisers is one way. Facing him down at every turn is another. The best way might be through the legal system because he DID violate the law (let’s just see if the legal system holds up).

  11. Generally, you’re right that spoken defamation is slander. However, when the defamation is broadcast via radio and television, it is libel.

  12. The 1st Amendment is about GOVERNMENT censorship; people can complain to those who provide speakers a forum to desist,(as those nuts wanted the Dixie Chicks off the radio did).
    But to seriously state: “Limbaugh suggested that Fluke and others are perhaps less discretionary in their choice or frequency of sexual activity than he considers acceptable when he said Fluke is having so much sex that she can’t afford the birth control. Nothing in her testimony supports this assertion.’
    I love that: “Nothing in her testimony supports this assertion.” That’s funny! It sounds so clueless and uptight, like somebody complaining about the “reporting” on “Weekend Update”on S.N.L.
    Good luck finding a jury that would find Libel in Rush’s statements. (again I say, that went too far and didn’t make the point, but you better suck it up; these are coarse times,gramps.)

  13. Hitler could have been intervened, but it would have had to be long before he came to public notice. Many people suffer violent abuse in youth; few become Hitler…or Stalin…or Manuel Noriega, Saddam Hussain, you name it; but quite a few become lesser malefactors.

    Hitler and Stalin both had, in addition, serious brain injuries before their malignity became full-blown: Hitler from gas poisoning, Stalin from some type of encephalitis/ meningitis following a serious injury. Such ailments affect the frontal lobes, and people so affected may become organic psychopaths.

    All of the foregoing men, furthermore, had above-average intelligence. Differently guided, that intelligence indeed could have made them a force for good. Driven by bitterness, rage, and in at least in two cases by an organically incapacitated conscience, we see where it led.

    Last of all, any of us who knows a young person, gifted with intelligence and suffering with trauma…maybe you can make a difference. You surely will to the youngster. Maybe you will to the world.

  14. No. The difference is not between spoken or written; it is between fleeting and preserved for posterity. “In vento et rapida scribere, oportet aqua”, Catullus said: write it on wind and water and let it get flushed. A defamatory skywriting in smoke might be no more than slander, if no one photographs it; defamatory speech preserved electronically and so memorialized for retrieval becomes libel.

  15. Most strangely, Mr. Pain, you seem to assume everyone who disagrees with you is old; therefore, it seems safe to venture your own folly comes from youth and the mistaken idea that you’re “cool”. Age will cure you, if you live to see it. Meanwhile, I assure you it would be easy to seat a jury that would convict Mr. Limbaugh. It would be the same kind of jury that convicts rapists: fathers of daughters.

Leave a Reply

Your email address will not be published.